Chaitanya S/O. Pratik Sharma through Guardian Vs State of Gujarat

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C/SCA/10396/2017 JUDGMENT

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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

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R/SPECIAL CIVIL APPLICATION NO. 10396 of 2017

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FOR APPROVAL AND SIGNATURE:

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HONOURABLE MS.JUSTICE BELA M. TRIVEDI Sd/- =======================================================	===
1 Whether Reporters of Local Papers may be allowed to see the judgment ?	No
2 To be referred to the Reporter or not ?	No
3 Whether their Lordships wish to see the fair copy of the judgment ?	No
4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India or any order made thereunder ? =======================================================	No ===

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CHAITANYA S/O. PRATIK SHARMA THROUGH GUARDIAN

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Versus

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STATE OF GUJARAT & 2 other(s)

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==========================================================

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Appearance:

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MR PRAKASH G PANDYA(3041) for the Petitioner(s) No. 1 MS. JYOTI BHATT, AGP, (1) for the Respondent(s) No. 1,2 MR AJAY S JAGIRDAR(2688) for the Respondent(s) No. 3

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==========================================================

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CORAM: HONOURABLE MS.JUSTICE BELA M. TRIVEDI

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Date : 02/05/2019

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ORAL JUDGMENT

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1. The petitioner has filed the present petition seeking directions against the respondents to declare the admission of his son Chaitanya as having been taken under the Right of Children to Free and Compulsory Education Act, 2009 (hereinafter referred to as 'the said

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Page 1 of 7

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C/SCA/10396/2017 JUDGMENT

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Act').

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2.The case of the petitioner is that he
belongs to Hindu Mahyavanshi Cast which is one
of the castes recognized by the Government of
Gujarat as the Scheduled Caste. The son of the
petitioner was admitted in Standard - 2nd in the
respondent No. 3 – School, and was studying in
Standard 5th at the time of filing of the
petition. It is further case of the petitioner
that at the time of taking admission, the
petitioner had informed the school authorities
that he belonged to the Scheduled Caste, and was
not capable financially to pay up the fees, and
therefore, he be given admission under the said
Act. Accordingly, the son of the petitioner was
admitted, however, suddenly after four years,
school authority demanded fees of Rs. 1,69,000/-
towards the outstanding amount of fees for four
years, and did not allow the son of the
petitioner to enter the school bus. The
petitioner, therefore, immediately paid Rs.
35,000/- and filed the present petition. The
Court, while issuing the notice vide order dated
20.11.2017 directed the respondents that son of
the petitioner be allowed to prosecute the study
in 6th standard.

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3.The respondent No. 3 – School has resisted
the petition by filing reply contending inter
alia that son of the petitioner was not given

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Page 2 of 7

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C/SCA/10396/2017 JUDGMENT

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admission under the provisions contained in the
said Act, he having taken admission in class 2nd
in the year 2013-14. It was also contended that
the petitioner had not filed any application to
the District Education Officer, nor the District
Eduction Officer had directed the school
authorities to give the petitioner's son
admission under the said Act, and therefore, the
admission cannot be treated as one given under
the provisions contained in the said Act.

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4.The learned advocate Mr. Prakash G. Pandya
appearing for the petitioner vehemently
submitted that the petitioner being a member of
Scheduled Caste, his child would fall under the
categoryofthe“childbelongingto
disadvantagious group” as defined in Clause (d)
of Section 2 of the said Act. He further
submitted that the child of the petitioner is
entitled to free eduction from the age 6 to 14
years as contemplated under Section 3 of the
said Act. While conceding that the petitioner
had not made any application to the District
Eduction Officer, as per the Government
Resolution dated 23.05.2013, he submitted that
the petitioner was not aware about such
procedure, and even otherwise the respondent
school authorities had treated the admission of
his child under the said Act. He further
submitted that except the transportation fees,
even the respondent School authorities had not

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Page 3 of 7

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C/SCA/10396/2017 JUDGMENT

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demanded the tuition fees from the petitioner
for four years, and all of sudden, had demanded
Rs. 1,69,000/- as outstanding amount for four
years. He also submitted that in order to see
that the eduction of his son is not spoiled, the
petitioner had given undertaking on 22.06.2017
that he would pay up the outstanding amount,
however, the petitioner is not in position to
pay the said amount, and therefore, lenient view
be taken.

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5.However, the learned advocate Mr. Ajay
Jagirdar for the respondent No. 3 – School
authorities submitted that the son of the
petitioner having been admitted in standard –
2nd, the provisions of the said Act did not
apply. He further submitted that the petitioner
had paid Rs. 21,200/- out of Rs. 35,000/- while
taking admission in 2nd standard for the academic
year 2013-14, and thereafter paid up the fees
partly, and therefore, the respondent school had
demanded the outstanding amount of Rs.
1,69,000/-. He further submitted that the
respondent school shall hold the examination of
the petitioner's son for standard – 7th, and also
give School Leaving Certificate if the
petitioner makes part payment of the outstanding
amount.

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6.The learned AGP Ms. Jyoti Bhatt appearing
for the State authorities, however, relying upon

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Page 4 of 7

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C/SCA/10396/2017 JUDGMENT

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the Government Resolution dated 23.05.2013,
submitted that the students have to follow the
procedure laid down in the said Government
Resolution before taking admission under the
said Act, according to which the prescribed form
is required to be filled in by the parent of the
child and submitted to the District Eduction
Officer, who after scrutinizing the same, would
direct the concerned school authority to grant
admission as per the quota. She also drew
attention of the Court to Section 32 of the said
Act to contend that the petitioner could have
approached the local authority if he had any
grievance.

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7.Having regard to the submissions made by the
learned advocates for the parties and to the
documents on record, it appears that the
petitioner has approached this Court by filing
this petition, without approaching the local
authority as contemplated under section 32 of
the said Act, and therefore, an alternative
remedy being available, the present petition
without exhausting the said remedy would not be
maintainable. In any case, so far as merits of
the petition are concerned, it is not disputed
that the petitioner belongs to the Scheduled
Caste, and therefore, his son would fall under
the category of child belonging to disadvantaged
group as defined in Clause (d) of Section 2 of
the said Act. It is also not disputed that the

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Page 5 of 7

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C/SCA/10396/2017 JUDGMENT

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son of the petitioner had taken admission in
Standard – 2nd in respondent No. 3 School without
approaching the District Eduction Officer as
required as per Government Resolution dated
23.05.2013. The contention raised by the
learned advocate for the petitioner that the
petitioner's son got the admission in March -
April, 2013 and the said resolution was issued
in May, 2013, and therefore, the petitioner was
not aware about the procedure to be followed as
prescribed therein, has some substance, however,
it appears that the petitioner's son had taken
admission in standard – 2nd in the year 2013-14,
and the obligation of the school authority under
Section 12 of the said Act is to admit the
students belonging to the specific category
mentioned in Clause (d) and (e) of Section 2 is
to admit the students in Class-1 to the extent
of atleast 25% of the strength of that class.
It appears that there is no obligation on the
part of the respondent school to admit the
students in Class-2nd under the said Act, even
if the child belongs to the specified categories
mentioned in Clause (d) and (e) of Section 2.
It further appears from the record of the case,
more particularly, the admission form filled in
by the petitioner that while taking admission of
his son in the respondent School in Class – 2nd,
he had taken the same in normal course, and had
not made any application specifically under the
said Act, much less had made any application to

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Page 6 of 7

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C/SCA/10396/2017 JUDGMENT

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the District Education Officer, for granting the
admission under the said Act. Under the
circumstances, the petitioner cannot claim as a
matter of right to get admission of his son in
the respondent No. 3 – School under the said
Act.

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8. In that view of the matter, the petition being devoid of merits, deserves to be dismissed and is dismissed accordingly. Rule is discharged.

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9. However, considering the submissions made by
the learned advocates for the respondent No. 3 –
School that the respondent School is ready to
accept part payment towards the outstanding
amount of Rs. 2 lacs for holding the examination
of the petitioner's son for standard – 7th, it
is directed that the respondent No. 3 – School
shall hold the examination of the petitioner's
son Chaitanya for standard 7th, if the
petitioner makes the payment of Rs. 50,000/-
within two weeks. If the said payment is made,
it will be open for the petitioner to get School
Leaving Certificate from the respondent School
or continue with the respondent School as a
regular student, and the respondent School shall
not insist to make payment of balance of
outstanding dues.

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Sd/- (BELA M. TRIVEDI, J)

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AMAR SINGH

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Page 7 of 7

Chaitanya S/O. Pratik Sharma through Guardian v. State of Gujarat

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Chaitanya S/O. Pratik Sharma through Guardian v. State of Gujarat

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